Probationary period for an employee: how to draw it up correctly?

When hiring an employee for a probationary period, the employer must sign an employment contract with them.

What conditions should be provided to legally protect the rights and interests of both parties?

What does the law say?

Article 26 of the Labor Code stipulates that the employer has the right to hire an employee with a probationary period. The key point is that this is the right of the company’s management, not its direct obligation.

This is necessary to check how well the candidate meets the requirements of the vacant position.

To avoid misunderstandings and legal disputes in the future, it is necessary to set specific probation conditions and include them in the following documents:

• the candidate’s job application,

•  the employment contract,

• the hiring order.

If any of the above-mentioned documents do not contain certain conditions, it may be considered that the employee was hired without a probationary period.

Thus, when hiring a candidate with a probationary period, the employer must accept a job application from them, sign the employment contract, issue an internal order, and notify the tax authorities. 

After signing the employment contract, labor legislation applies to the employee during the probationary period. This means the person must receive a salary and comply with all internal labor regulations, while the employer must provide all necessary working conditions.

What probationary period can be set?

The employer determines the duration of the probationary period based on legislation. Article 27 of the Labor Code states that the maximum period for a new hire must not exceed three months. The minimum is one month.

There are exceptions when the company’s manager, in agreement with the trade union, may set a period of six months.

The start date of the probation is the first day the employee starts working.

Who may not be subject to a probationary period?

Article 26 of the Labor Code defines a list of persons to whom a probationary period does not apply. Among them:

• minors;

• young specialists after graduating from vocational training institutions;

• persons elected to a position;

• young workers after graduating from higher educational institutions;

• persons with disabilities;

• pregnant women;

• IDPs;

• single mothers, etc.

Documenting the probation

The employer makes a decision regarding the employee during the probationary period. If the employee meets the job requirements, the employer must sign a new employment contract with them, stating the conditions of employment on a permanent basis. 

Another option is dismissal of the employee who does not meet the job requirements. If the employer makes such a decision, they must notify the employee in writing three days in advance.

The written notice serves as the basis for terminating the employment contract. However, the employee has the right to challenge this decision legally (Article 28 of the Labor Code).

To avoid disputes upon dismissal, the employer must properly prepare the documents. It is necessary to state that the employee does not meet the job requirements.

Current legislation does not establish specific requirements for the documents needed when dismissing an employee on probation. Therefore, each company prepares internal documentation based on its specific needs.

For example, the document may include tasks for the probation period and the manager’s conclusion on their performance. If unsatisfactory results are documented, the organization’s director issues a dismissal order.

At some enterprises, the decision regarding the candidate's future after the probation period is made collectively. A commission is formed to consider the issue and provide recommendations to the management.

If the employee does not pass the probation, the company documents the dismissal based on Article 40, clause 11 of the Labor Code. The employer is obliged to inform the employee in writing before the end of the probationary period.

Otherwise, if the notification deadlines are missed or there is no written evidence of the employee’s incompetence, the employee may challenge the dismissal in court.

If the probation period ends and the employee continues working, they are considered to have passed the probation. Therefore, the employment contract can only be terminated on general grounds.

The company does not need to issue a separate order on the final employment of a person who has passed the probation.

Appeal procedure

The dispute is resolved by the labor dispute commission established at the company or by the district court. The features and time limits for handling such cases are specified in Article 222 of the Labor Code.